Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

February 20, 2015

WORCESTER PRISON GUARD IS CHARGED WITH DOMESTIC VIOLENCE CASE OF ARMED ASSAULT WITH INTENT TO MURDER

Jaime Fuentes ,48, is/was a prison guard at the infamous maximum security state prison,Souza-Baranowski Correctional Center in Shirley. As of Wednesday, he is the “Defendant”. He was living in Worcester. Now he in custody, held without bail.

Of course, if what the Commonwealth says about him is true, he now has more to talk about with his former prisoners.

Monday he is scheduled to have his very own Dangerous Hearing.

Prosecutors say that the Defendant threatened his live-in girlfriend during an argument Tuesday in which he accused her of being unfaithful. He was allegedly Holding a gun to her head and threatening to kill her at the time.

Law enforcement claims to have seized a gun from the home and another from the Defendant’s vehicle.

Not guilty pleas were entered on behalf of the Defendant at his arraignment Wednesday on charges which include assault with intent to murder.

A lawyer for the Defendant says he “absolutely denies the allegations” and says that he was the victim.

Any time you press a deadly weapon to someone’s head, particularly if you threaten to commit a crime (like homicide, for instance) it is a serious situation.

Of course, as you can imagine, there are other aspects of this case that make it even more serious. First of all, it appears to be a domestic incident. Therefore, the red flag of “domestic violence” enters the scene. The only change that that makes is that it is handled with even more caution and fear of the media should the system seem to pay too much attention to the presumption of innocence.

Another aggravating factor is what the Defendant does for a living. The fact that he does it at what is supposed to be the most secure, and is known as the most dangerous, security facility in the Commonwealth cannot help matters either.

These are some of the factors which may have had a part in changing what appears to be a case in which otherwise chargers for “threats to commit a crime” and “assault and battery with a dangerous weapon” would be the charges.

“What do you mean, Sam? The guy is said to have threatened to kill her.”

Yes he is and he, who remains allegedly presumed innocent, says that he didn’t do it and is, in fact, the victim. Not that we are going to take his word for anything, of course. That’s what trials of for.

I realize that we are dealing with a limited amount of facts in this matter, but there is nothing to indicate an actual assault to commit murder.

We have discussed what an “assault and battery” is before. Basically, the “assault” is putting the person in fear of an upcoming battery. A “battery” is in offensive touching. People usually envision this as a punch or a kick. It does not have to be that. Therefore, if the defendant was just holding or touching his girlfriend in inoffensive way (offensive to her), it would meet the criteria of a battery.

In this case, he is alleged to have done this with a gun. It should surprise nobody that a gun is considered a deadly weapon. Therefore, you have the allegations of “assault and battery with a dangerous weapon”.

Threatening to commit a crime is just what it sounds like. Certainly, “I am going to kill you” qualifies as a threat to commit a crime.

But “assault and battery with intent to murder”?. Not so much, I would argue.

If the Defendant was choking her, or doing something else which indicated an actual attempt to kill her, then that might justify the charge. Even if he said, “I am holding you here because a deadly gas is coming through the pipes and will kill you here”, it would make sense.

In fact, we do not even know if the gun was loaded. Of course, he did not threaten he was going to shooter, so I suppose one could say that he was about to use the gun to “pistol whip” her.

“So are you saying that they may have overcharged him?”

That is done routinely. In this case, there is even more incentive to do it because of the factors I indicated above. The tougher the Commonwealth can look, the better it is for the Commonwealth.

“But won’t a judge see that right away and dismiss the charges?”

I hear that type of question almost every day. The answer is no. The time when a judge will look at the charges and the allegations in consider dismissing the case are a good deal into the future. Even then, it is unlikely to happen. However, it is not going to happen in this case.

Not now, certainly.

However, if the allegations do not fit the charges, the prosecution will have to fix things before the matter guess to a trial. In this case, that is likely to happen when the case is indicted. Which I expect it will be. The indictment will come from a grand jury and will supersede the initial criminal complaint.

By publishing this information on this Web site, the Boston, Massachusetts law firm of Altman & Altman LLP is not claiming to represent any clients or cases mentioned here. The content provided is designed to inform readers and is not intended as legal advice.